Tuesday, August 06, 2013

In
the lengthy, acrimonious and not always enlightening debate about the decision
of the Egyptian Armed Forces to oust former President Mohammad Morsi it has been
widely been asserted that—whether what they did was politically wise—the Egyptian
generals acted unconstitutionally and immorally.They both broke their oaths and they abrogated the
constitutional order.The major point of contention is whether
in so doing they made a coup or carried out the revolutionary will of the people.The Armed Forces may, based on the
relevant portions of the 2012 constitution they negotiated with the Muslim
Brothers (as well as the representatives of other political groups) in 2012,
have a different idea.Without
addressing the longterm impact of the military intervention and ouster of
President Morsi it is worth thinking about the terms of the political agreement
embodied in that constitution.

If constitutions are documents that
set out the institutional division of power and authority within a state, they
also reflect compromises made between those various institutions and people at
the foundational moment.They
reflect, sometimes more obviously and sometimes less so, current concepts of
efficacy and authority as well as the relative influence of various interests
and institutions. As such they
spell out the institutions on which governance is based and the ways in which
those institutions can, initially, expect to interact.They reflect the anxieties as well as
the hopes of those who write them.Such anxieties are reflected in the language dividing power and in the
ways in which various holders of authority are bound to uphold it.

Scholars
assert that the origins of the modern Egyptian state lie in the construction of
the army by Muhammad Ali in the early 19th century.By the end of the 19th
century, however, the Armed Forces had been defeated by the British and
transformed into an instrument many of whose officers were British.The power of the army was profoundly
weakened, socially and culturally, with the diminution of Egyptian sovereignty
in the period between 1882 and 1954.During those years electoral partisanship, agricultural and commercial
wealth, and the authority of the Throne were the major axes of Egyptian political
life.Those decades, chronicled
especially well by Naguib Mahfouz in many of his novels, astute and wealthy
scions of powerful and wealthy families attended universities in Cairo, London
or Paris and returned home to positions of influence. The British controlled the Army and
intervened directly in national political life from time to time through it. Those who were incapable of or
uninterested in studying law, medicine, or literature went to the Military
Academy which, until 1936, had largely been the preserve of the older
Turco-Circassian elite.

The
Armed Forces returned to the center of the country’s political life in 1952
when graduates of the group of Egyptian middle and lower class cadets who had
entered in 1936 overthrew the King and eliminated the remaining British troop
presence.The new rulers were heirs,
albeit to an attenuated degree, to the traditions of revolutionary France in
which national conscription represents the nation in arms and provides the
officer corps with the material to recreate the conscience of a nation. They
wrote the Armed Forces directly into the constitution and created an enduring
tradition by words, economic reforms, and the staffing of much of the country’s
government with army officers.

To
understand the role of the Armed Forces in the 2012 constitution and in
constitutional life over the past half century, it is best to begin with the
police.The new Egyptian
constitution, as befits a centralized state, invokes both institutions that
deal with force, but in significantly different ways.Employing Nivien Saleh’s translation we can see that Article
199 defines the police (“shurta”) as a disciplinarian civilian organization
which preserves order and carries out law and decrees.The police are, in principle if
not always in practice, subordinate to the laws and statutes of the
country.They have no special
independent role to play and they are, uniquely in the constitution, called
upon to be faithful or allegiant to the constitution (in Arabic their “wala?” is
to the constitution and the law).In
this the police differ from the Armed Forces, for this particular language is
not to be found in the description of the army on which no such allegiance is
enjoined.

The
army is constituted Article 194, the second of a series of articles dealing
with national security.The armed
forces are the property (“mulk”) of the people and can only be constituted by
the state.Its task, however,
unlike that of the police is not subordinated to law.The Armed Forces are tasked to to protect the country and
preserve its security as well as the security of its territory.Neither the constitution nor the law
figure into their role as defined by the constitution.They undertake their tasks under the
National Defense Council. Article 193, establishing the NDC (which, it will be
recalled has existed since 1956), provides it with an expansive
definition.The NDC can not only
discuss but authorize strategies for ensuring the security of the country,
deals with crises in “all their forms” and adopts the necessary measures for their
containment.Its responsibility to
identify and thwart threats to national security both internally and externally
and on what the text identifies as both official and “popular” (“sha3bi”)
levels.The NDC is thus an
autonomous executive agency as well as a coordinating mechanism for the Armed
Forces.

The
NDC, it is true, is presided over by the President of the Republic and its
membership includes the heads of the legislative branches as well as ministers,
but the bulk of its members are from the police and Armed Forces.The constitution is silent on whether
only the President of the Republic can convoke it nor on whether his presence
is necessary for it to meet.It
might then be described as a formally constituted military council with broad
executive powers that it defines itself on which the President of the Republic,
two legislative leaders, and two civilian ministers form a distinct minority.

Earlier
analyses of the constitutional role of the armed forces focused on the high
degree of institutional independence the army had obtained in regard to
legislation and the budget.President Morsi was, as so frequently repeated, the first freely elected
civilian head of state in Egyptian history.The euphoria surrounding his dismissal of Generals Tantawi
and Anan seemed to confirm his supremacy over the Armed Forces.The constitutional language making him
the Supreme Commander of the Armed Forces led analysts to ignore the similar
language that had been central to Egyptian constitutions since 1956 (in which
the National Defense Council was first constituted) and to ignore the language
defining the Army’s role in Egyptian political and constitutional life which
were a distinctive contribution of the new constitution.The new constitution, in other words,
expanded the formal role of the Army even as events on the ground appeared to
restrict it.

Confronted
with an increasingly polarized political space in June 2013, the Armed Forces
could plausibly maintain, to themselves and to a wider circle of Egyptians as
well, that the country was faced with a disaster or crisis in some form.This would invoke Article 193.It would be implausible to claim that
the Armed Forces had either a constitutional duty to remove an elected
president from office, but there is no reason to think that General Abdelfattah
Sisi saw himself as departing either from his constitutionally prescribed role
or the Army’s longstanding view of itself by his attempts to insist that the leading
political figures negotiate a solution.The Egyptian armed forces, like those of many countries including France
throughout the 19th and into the 20th century, see
themselves as the guarantors of national sovereignty and the integrity of the
state rather than of the constitution.Constitutions, in much of the world, come and go; nations and states
continue.The United States is not
unique but it is uncommon in the degree to which the constitution, rather than
an army, a monarch, or the institutions of the state taken as a whole, are
perceived as central to national identity.

If
the Armed Forces that General Sisi heads, could legitimately see itself as
having a transcendent political role, what of Sisi’s responsibilities as
Minister of Defense and the oath he swore?There appears to be some confusion about the nature of the
constitutionally defined oath that Egyptian officials take.Sisi, like other ministers (as well as
legislators and the President) took an oath of office.The ministerial oath does not
however require the taker to preserve the constitution.Ministers swear only to preserve the
republican system and thus presumably abstain from re-creating a monarchy.They also pledge to defend the people’s
interest.In regard to the constitution,
however, they only swear to respect it (“yahtarim”).Legal scholars and students of language no doubt have
much to tell us about what a word whose root lies in the keeping of something
as sacred and apart (haram) may be but as far as I can tell the word has no
special meaning in Egyptian constitutional law.Pledging to respect the constitution means simply to abide
by it, but not necessarily to defend or protect it.As should now be clear the Egyptian constitution does use
those words in other contexts but only the police—either the Armed Forces nor
government ministers—are told to be loyal to it.American officials similarly placed pledge to preserve, protect
and defend the constitution, but not either the American state or the American
people. So too to Indian officials swear.And in neither in India nor the United States do the Armed Forces have
any constitutionally defined role.

So
General Abdelfattah Sisi, whether acting prudently or outrageously, may have
had no reason to believe that he was breaking his oath or acting outside of his
constitutional obligation in the weeks around June 30.To the contrary he may have felt that
he was acting not only in the confines of Egyptian political practice over the past
six decades but that, by giving ample warning of a possible coup, he was acting
with significant forbearance and in accord with the arrangements that had been
negotiated between the Armed Forces and the Muslim Brotherhood during the
transitional period.Because we
have so little idea of the actual negotiations around the writing of the 2012
constitution, we cannot know if the Muslim Brotherhood understood just how
important the articles under which the Armed Forces were constituted were.Judging by reports of President Morsi’s
continuing belief that he had a unilateral right to determine what the Armed
Forces would do, it is possible that neither he nor his comrades understood
very well what they were signing on to.In the rush to ratify the constitution in the waning hours of November
2012 perhaps they neither read it very carefully nor understood its terms very
well.What is clear going
forward is that truly subordinating the military to civilian control will be a
long and arduous process and that it may not finally be achieved as long as
civilian politicians believe they can contain it with appropriate
constitutional language.It may
only have come when the Armed Forces are, at long last, no longer inscribed in
an Egyptian constitution.